The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Saturday, May 08, 2010

Beldar's take on the current SCOTUS buzz

Another [senior administration official] said that there have been several meetings but that the White House has not much shared its point of view. Still, one outside source said the president's preference is less apparent than at the same point a year ago, just before he nominated Sotomayor. "Last time around, you knew Sotomayor was going to be the candidate," the person said. "She was such a home run on so many different counts.... I would say this one is much, much, much more difficult for them."

So reports the WaPo, in what I think was probably an unintentional episode of damning by faint praise.

The Hon. David Souter, retired Associate Justice, was reliably a Lefty vote, but he generally lacked any significant influence beyond his single vote. Justice Sotomayor was an almost perfect replacement for him — and by "perfect replacement" I mean "perfect match." She was picked on the sole basis of identity politics, and I suspect all that "wise Latina" superiority stuff has been politely ignored, but has not been quite forgotten, by her new peers.

Indeed, I have a comparatively higher opinion of each of the people supposedly on Obama's current short list than I do of Justice Sotomayor, and I think any of them would have a better shot than Justice Sotomayor at satisfying what ought to be a liberal Democratic president's strategic goals in making a SCOTUS appointment. That is to say, I think Obama essentially wasted his pick on Justice Sotomayor. And I think that any of the people now supposedly under consideration would have at least a chance of becoming a Justice with more influence than Souter wielded or Sotomayor is likely to wield. I doubt any of them would ever become as influential as was, say, Justice Brennan or even Justice Douglas, but they might manage, if they're fortunate, to mostly fill Justice Stevens' liberal shoes as someone who could definitely hold his or her own.

Of the names being floated, I think Judge Diane Wood of the Seventh Circuit is the most likely to be able to influence other votes, especially that of Justice Kennedy — albeit in directions I'd mostly rather not see those votes go. (I can't deny that part of me would also prefer to see Judge Wood get the pick because she and I both took the UT-Austin/Plan II to Texas Law School career path, but that's my own flawed version of "identity politics" talking.)

Both as a political conservative and an opponent of judicial activism, I'd be least concerned about Solicitor General (and former Harvard Law Dean) Elena Kagan — which is another way of saying I don't think she'd end up being very much more influential than Sotomayor and that she'd probably be less influential than almost any "average" liberal circuit judge. (That includes either Merrick Garland or Sidney Thomas, the two white male circuit judges whom Obama has given what I firmly believe are only "courtesy" interviews. He might pick someone white, but he won't pick someone white and male.) So I'm mostly rooting for Obama to pick Kagan.

For what it's worth, my worst-case scenario is still another Harvard product, Cass Sunstein. I actually think the sort of schmoozing, fund-raising, and deal-brokering that Kagan is supposed to have been good at when she was the dean at Harvard isn't likely to be nearly as effective at the SCOTUS. Sunstein is a genuine dynamo of ideas — many of them absolutely terrible — and I think his stature as an academic superstar is far more likely to impress Justice Kennedy than Kagan's status as a mere dean, which (after all) is an administrative job.

Were I a senator, I would probably vote against anyone Barack Obama nominated; he in particular, by his own votes against Dubya's Roberts and Alito SCOTUS nominations, forfeited the legitimacy from which he could have argued that a president ought to be able to get confirmation votes for well-qualified nominees regardless of partisan politics. But I wouldn't filibuster any of the four currently supposed to be the front-runners. I don't believe filibusters are appropriate for judicial nominations, and I'm not going to change that principled position (which I believe to be firmly rooted in the Constitution) to retaliate against Dems who've abused the filibuster during the Bush-43 and Bush-41 administrations.

I would try to make best possible use of her or his confirmation hearings to expose liberal positions taken by anyone who Obama might pick, but frankly, any Democratic nominee is going to follow the same playbook Sotomayor did — that is, dissemble about his/her own real views and pretend instead to be John Roberts.

All SCOTUS nominations are important, but comparatively, this one is not nearly as important as will be the nomination for Justice Scalia's successor. I'm therefore going to divert into a more productive use — specifically, good wishes for Justice Scalia's continued health and vigor and clear writing — some of the mental energy that I might otherwise expend worrying about this particular pick.

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Dear Mr. Dyer: Sunstein? SUNSTEIN? Good God. I won't sleep for a week. I hadn't even thought of him. Getting that devious, manipulative, quack in SCOTUS would be a swell revenge by The One on this nation for not appreciating him...

I think you may overestimate the dazzling effect Sunstein's quackery may have. I cite Felix Frankfurter, who was far more dazzling in his time than Sunstein is today. When Frankfurter was appointed by FDR in 1939, the general expectation was that he would vanquish the Old Guard and keep the New Deal flame alight in the Court. That illusion lasted about three years, by which time Frankfurter's windbaggery and histrionics had irked enough Court members to start a swell set of feuds that enlivened the day. Then Frankfurter became just one vote of nine, and a permanent source of uproar and discontent on the Court. He was a showman of the law, not a real thinker. Not for nothing did Homer Cummings veto Frankfurter's appointment as Solicitor General in 1933, saying he didn't want someone who could lose cases in the grand manner.

So too with Sunstein, a devious quack who manages to inspire distrust with his shameless maneuverings and all too visible belief that the little people need to be nudged, preferably with a velvet covered baseball bat. The current members of the Court have been there quite a while on average, and have seen a lot of fads come and go. Sunstein is a tatterdemalion of notions, many of which will appeal to the Left gang on the Court, without, however, being taken with excessive seriousness.

I think you are bang right about Scalia being the linchpin. Let him croak and the new reign of terror will begin. Dicta will fly around like machine gun bullets. The only compensating virtue I can imagine is the sight of Kennedy soaring over the steps to the Supreme Court building with Justice Breyer's size 12 bootprint on his backside, along with a "Good riddance who needs you anymore" wreath flying alongside with him. Kennedy will pick himself up, rubbing his rump, complaining that it hurts, but he will join his new friends on the Right. Back he'll soar over the steps, this time with Clarence Thomas's bootprint making a cross with Breyer's. He'll pick himself up again, complaining to Linda Greenhhouse that none of the kids like him any more. Why should they, you spineless rat, she hollers as she belts him across the chops. Three strikes and Kennedy is out, as Greenhouse mounts the steps, blowing into her copy of the Living Constitution, somnething that never bursts no matter how much liberal hot air fills it...

Excuse me. The thought of Sunstein is too horrifying. Let me pass on to the possibility of Kagan. She might be the best of a bad lot, but that's a wretchedly low average. The way she handled ROTC and the Solomon Amendment squabbles at Harvard Law puts me off her. There's a fanatic who cares not a dam for what anyone else thinks when she can get away with it, i.e. when she can bully people in the manner of Harold Koh.

Perhaps you can enlighten me and other lay members about the current dicta that the circuit courts are the best, and dam near the only, source of Supreme Court Justices. Without disputing the good training the circuit courts can give, they surely aren't the sum of all legal wisdom. You and I differed seriously on the attempted nomination of Harriet Miers to the Court, but your point of having a practicing attorney on the court as opposed to the crowd of chicken entrail readers from the circuits was telling. Certainly the present gang on the Court is a poorish ad for the superiority of circuit court judges, with the Court's steady decline in opinion output, and opinions so poorly written that there's genuine puzzlement about what the hell they mean.

Drew (#1): Justice Kennedy is in reasonably good health; I expect him to try to remain in active service until there's another Republican in the White House if he can manage it, which is to say, at least through January 2013. An awful lot of important cases are going to be decided during that stretch, probably including cases challenging Obamacare.

I am particularly concerned about the new appointee's influence over Justice Kennedy because the Supreme Court is now, and will continue to be after Stevens' replacement is seated, a body that reliably divides four votes to four in important cases, with but a single "swing" vote — and that is Mr. Justice Kennedy. I actually do give Kennedy credit for the many, many occasions on which his Ouija board or Big Rock Candy Mountain game-spinner or bed-arising side puts him with the conservatives; it is not that he is faithless, but just that he is so frequently unfaithful. While Obama remains in the White House, my wishes for Justice Kennedy's continued health and energy and desire to continue active status are almost as fervent as my wishes for Justice Scalia, who's also grown long of tooth. But to be blunt, I want to see Kennedy stay because he's blocking the appointment of someone much worse, not because he's remotely close to my "ideal" SCOTUS Justice.

In any event, unless and until the Dems can replace a committed judicial conservative with a politically liberal judicial activist, and thereby change the 4/4 equilibrium, then aiming at persuading the swing vote — Kennedy — is the only game in town. For what it's worth, I think Obama will have another opportunity comparable to this one, but similarly limited, when Justice Ginsburg retires, which will almost certainly happen before the end of Obama's first term, probably next year. Her replacement can't possibly be more liberal than she's been, so the voting will be a wash; influence will once again be the only variable in play.

Perhaps your views are more congruent with those of Dahlia Lithwick, who wrote a piece this week at Slate entitled The Limits of Influence: Asking "Who can sway Kennedy?" is no way to pick a justice. I don't much respect Ms. Lithwick, who I think is glib and intellectually dishonest on her best days, and positively deceitful on her worst, but I think this particular essay is among her silliest and most naïve. Her key paragraph:

And finally, but perhaps most critically, reducing the search for a Stevens replacement to a quest for the most able logroller on the left does nothing to dispel the widespread public perception that conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room. The selection of a new Supreme Court candidate should be an opportunity for the president to answer that claim with a crystal-clear message about the nature of liberal jurisprudence. "We think she might be able to flip Kennedy," is neither a powerful nor inspiring judicial vision. The selection of a new Supreme Court justice is too important to reduce to politics, and the debate over judicial ideology has to be about more than just winning.

The reason this is so very funny, of course, is that the Democrats are, and have been for decades, guilty of precisely the unprincipled pragmatism that she purports to reject. What Ms. Lithwick describes as a "widespread public perception" is the actual reality: Democratic presidents do not pick federal court nominees because of their "inspiring judicial vision," they pick nominees because of their reliability as judicial activists who will pervert the function of the judicial branch to achieve political goals that the Dems want, but haven't been able to achieve on their own, through the legislative and executive branches. And yes, the Dems' convulsive and compulsive determination to preserve Roe v. Wade is the one of the easiest, and among the most apt, examples of that. There is no difference, in other words, between "liberal jurisprudence" and "liberal politics."

I do not admire her team's rules. But I do acknowledge their political utility in aggregating more power to the state and redistributing wealth, so if I put myself in Obama's shoes and try to imagine what makes best sense from his (warped and craven) perspective, then it makes sense to pick a new SCOTUS nominee precisely on the basis of who's most likely to influence Justice Kennedy.

Mr. Koster (#2): I've come to enjoy almost all of your comments, but this one I found particularly amusing. We agree on a great deal. On the specific subject of picking SCOTUS Justices from the circuit court benches, I still believe that there ought be frequent choices from elsewhere. (I don't think Obama really much considered the fact that Sotomayor had been a trial judge in the Southern District of New York before she became a circuit judge as among her significant qualifications, but that's actually one of the most encouraging things I could point to about her.)

(4)A.W. made the following comment | May 10, 2010 9:46:26 AM | Permalink

Belder,here is what i wrote on Legal insurrection:

> I am very pleased about the nomination of Kagan. Give me a moment, let me explain why.

> First, she couldn't possibly be worse than Stevens. in fact we might hope a little rightward movement on a few issues.

> second, she stinks as an advocate. For instance, in Citizen's united she took the radical position that corporations had no free speech rights at all. a smarter advocate would have taken a more moderate position. She lost kennedy the moment she said that this mean even a book could be banned. she's terrible. And thus she will be a positive liability to any cause she gets behind in the conference room.

> She will be a vote, but she will not move the court. by comparison, thomas moves the court. he says something in one case and 5-10 years later, it becomes the rule. not all the time, but he is demonstrably capable of moving his colleagues to his position.

> btw, are we certain about the lesbian thing?

> that being said, first, I am sure that Stevens was going to vote for gay marraige eventually, so if she does, nothing will have changed. And certainly she has alot of room to weasel out of what she said before congress--such as saying she merely meant there was no court case saying that there was a right. remember to liberals there is no constitution, just what the courts say about it.

> but that all being said, even if she is biased in favor of it, that might backfire. it is regularly noted that in judicial bias cases, that both sides have a right to complain. For instance, imagine if we find out that the judge is best friends with the plaintiff in a given case. so the defendant has cause to complain, to say, "you're just going to favor your friend." But so does the plaintiff, because he can say, "there is a danger that you might be unfairly hard on me, to prove you are not biased in my favor." Same thing, here. if Kagan is gay, then she might feel that if she is the 5th vote for gay marriage everyone will assume she was biased and it would deligitimize the ruling. Indeed, if she was gay, she might actually go the other way and refuse to strike down gay marriage.

> So that is my $0.02, fwiw.

Btw, on a wholly unrelated topic, i set up a blog to participate in the everyone draw mohammed movement, here: http://everyonedrawmohammed.blogspot.com/

Sorry to blog spam, but i am really passionate about this defense of freedom of speech.

Just replace "-at-" with the "at sign," that lower-case letter A in a circle that you get from typing SHIFT+2. Due to aggressive spam filtering, however, I'm likely to miss your email unless the subject line of your email starts with "BeldarBlog."

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